A federal judge issued a preliminary injunction on Nov. 22 that effectively restricted the City of Sammamish from deleting Facebook comments as a lawsuit for First Amendment violations proceeds in court.
The order is the latest development from the Kimsey et al v. City of Sammamish case, where three local residents allege that city communications manager Celia Wu unconstitutionally deleted comments criticizing the government from the city’s official Facebook page over the last year.
For now, the city may only delete comments containing explicitly offensive content such as pornography or racist slurs.
The ruling, issued by Judge Marsha Pechman of the Western District of Washington, determined that the city’s Facebook rule requiring comments to be relevant to the original post is unconstitutional under strict scrutiny, which is the highest bar for constitutionality.
Strict scrutiny was applied after Pechman determined that the city’s Facebook page is a designated public forum. The court was convinced by evidence that the page was “designed for and dedicated to expressive activities,” and that Facebook comments are not required to be approved by the city before posting. The plaintiffs also demonstrated that the city inconsistently enforced its relevance rule by permitting some irrelevant comments to remain on its page while deleting others.
In a designated public forum, any government censorship is unconstitutional unless it is “necessary and narrowly drawn to protect a compelling government interest.”
The city was unable to meet this burden because the court found the relevance policy too vague and was not persuaded by the city’s argument that the rule was necessary to prevent the dilution of public safety messages.
According to plaintiff counsel Joe Shaeffer, this order decided the bulk of the constitutional dispute.
At this point, the city can opt to settle the suit, appeal the court’s decision, or continue to a jury trial. For now, the city seems determined to proceed to trial.
Since the court has already ruled on the constitutionality of the city’s Facebook policies, the rest of the litigation will examine whether the city intentionally applied its policies unconstitutionally. The plaintiffs claim that the city “engaged in viewpoint discrimination by selectively deleting comments that are critical of the City and allowing other off-topic comments to remain.”
During discovery, the next stage of civil litigation, the parties will investigate this claim by formally requesting evidence from one another. If the suit is not settled by the end of discovery in approximately one year, a jury trial will take place to determine the extent of damages to be paid by the city and Celia Wu.
Shaeffer said the verdict could range anywhere from nominal damages of $1 on upward. He believes constitutional disputes are worth far more.
“The city should be on guard about deleting anything at this point,” said Shaeffer.
Defendant counsel for the City of Sammamish did not respond to requests for comment.
*12/3/21 Update: A trial date has been set for Dec. 5, 2022, at 9:00 a.m. before Judge Marsha Pechman.